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The Fate of Evidence of Contempt of Court by ASIC - NSD 1654/2018

Phillip Sweeney made this Freedom of Information request to Federal Court of Australia

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From: Phillip Sweeney

Delivered

Dear Federal Court of Australia,

On the 5 August 2019, an Affidavit was affirmed by PHILLIP CHARLES SWEENEY (not sworn) and on 7 August 2019, an electronic copy was filed on the Court File of NSD1654/2018 {ASIC v NAB Superannuation Trustees}.

Included in this Affidavit was as Affidavit Exhibit PCS10 which was a copy of a letter dated 5 August 2019 that had been sent to the Chair of the House of Representatives Standing Committee on Economics, Mr Tim Wilson MP.

Included in Affidavit Exhibit PCS10 was a copy of an email sent on 8 August 2018 by the previous Chair of the House of Representatives Standing Committee on Economics, the now Senator the Hon Sarah Henderson to James Shipton, the Chairman of ASIC.

This email was sent after the appearance of Nicole Smith, the former Chair of NULIS Nominees (Australia) Ltd {NULUS} before the Hayne Royal Commission and the ‘train wreck’ testimony of Ms Smith.

NULIS is now a Respondent/Defendant in NSD 1654/2018.

The email read:

“Dear Mr Shipton

I wish to request that this matter be fully investigated
Some years ago I asked ASIC to do so on Mr Sweeney’s behalf and it, in essence,
declined.
While I don’t have a full understanding of the potential breaches of the law due to
the fact this case is extremely complex and involves a trust fund established many
decades ago, Mr Sweeney has raised what I believe are a number of serious issues
which require investigation.

I look forward to hearing from you

Kind regards

Sarah”

ASIC had previously given an undertaking before the Honourable Justice Kenny in VID 323 of 2011 that ASIC would investigate allegations of maladministration of this trust fund.

On the 19 September 2019, Justice Yates ordered that this Affidavit and Affidavit Exhibit PCS10 be removed from the Court file pursuant to Federal Court Rule 2.28(1)(b)(i).

That is, the question as to whether ASIC had honoured the undertaking given to the Honourable Justice Kenny would no longer be a subject for NSD1654/2018 as would the question as to whether ASIC was now in Contempt of the Federal Court and whether proceedings in NSD1654/2018 could be impugned as an “Abuse of Process” {as well as possibly in other proceedings as well} as an outcome of such a Contempt of Court.

ASIC has not sought to have the undertaking given before the Honourable Justice Kenny discharged.

Also, the request of a Chair of the House of Representatives Standing Committee on Economics to the Chairman of ASIC which is germane to proceedings NSD 1654/2018 has also be removed from the Court file.

No mention was made in the Order by Justice Yates as to a specified way as to how this document should be stored after being removed from the Court file.
Therefore, the District Registrar must direct how this document must be stored pursuant to Federal Court Rule 2.28(3)(b).

I do not seek a copy of the Affidavit nor Affidavit Exhibit PCS10.

The document(s) I seek are copies of any email, phone log or other documents that would reveal how the original affirmed paper document and electronic copy were to be stored pursuant to Federal Court Rule 2.28(3)(b) after removal from the Court File on 19 September 2019.

These document(s) will assist in obtaining advice as to how ASIC may be held accountable to honour the undertaking given before the Honourable Justice Kenny in VID 323 of 2011 and so that current proceedings where ASIC is the Applicant/Plaintiff cannot be impugned as an "Abuse of Process" should these proceedings not be stayed until such time as the undertaking has been honoured by ASIC or the Court has discharged this undertaking given before the Honourable Justice Kenny by ASIC and its Counsel.

It is also a matter of public interest as to why a record of a request from a Chair of the House of Representatives Standing Committee on Economics should be removed from a Court file when the proceedings are a direct outcome of the Hayne Royal Commission.

Yours faithfully,

Phillip Sweeney

Link to this

From: External FOI
Federal Court of Australia


Attachment 2019 10 11 Acknowledgement of Request 28.9.2019 s.pdf
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UNCLASSIFIED
Dear Mr Sweeney,

Please find a letter acknowledging receipt of your request attached to this email.

Kind regards

FOI Officer
Federal Court of Australia

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Link to this

From: External FOI
Federal Court of Australia


Attachment 2019 10 18 FOI Decision Sweeney Phillip 28.9.2019.pdf
810K Download View as HTML


UNCLASSIFIED
Dear Mr Sweeney,

Please find, attached to this email, correspondence in relation to your FOI request.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Link to this

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